Retired Supreme Court Justice Calls For Constitutional Amendment To Prevent Partisan Gerrymandering

CREDIT: AP Photo/Danny Johnston

Retired Supreme Court Justice John Paul Stevens has a new book out, in which he proposes six potential amendments to the Constitution — including one to prevent lawmakers from drawing legislative maps intended to entrench their own party in power:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

As a practical matter, this (or any other constitutional amendment) is unlikely to be ratified. Amending the Constitution is slightly easier than attempting to catch a unicorn, but really not so much easier that it is likely to matter. Because of the sweeping consensus required to amend the Constitution — even if an amendment bypasses the normal procedure, which requires a 2/3s supermajority in both houses of Congress, it still must be ratified by 3/4s of the states — no amendment can be ratified if either major political party opposes it. And, for the moment, the Republican Party has six very good reasons not to support an anti-gerrymandering amendment:


Those are six of the most GOP-favorable congressional maps in the country — maps that are so favorable to the Republicans that they could easily make up the difference between Speaker John Boehner and Speaker Nancy Pelosi. Indeed, these maps were a major contributor to — if not necessarily the sole cause of — the fact that Republicans currently control the House of Representatives despite the fact that Democratic House candidates received more than a million more votes than Republicans House candidates in 2012. It is unlikely, to say the least, that Republican lawmakers would give up this advantage by ratifying a constitutional amendment intended to undermine gerrymandering.

Nor is an amendment necessary to prevent partisan gerrymandering. As even conservative Justice Antonin Scalia concedes, despite his staunch opposition to permitting the Supreme Court to strike down unconstitutional partisan gerrymanders, the Constitution permits Congress to “make or alter” state election regulations. And that includes prohibiting gerrymandering. So Congress could ban partisan gerrymanders by a simple majority vote tomorrow if it chose to.

So long as justices with similar views to Scalia control the Court, however, Congress could probably also use this power to gerrymander congressional maps even more than they are currently. Under Scalia’s view, there is little preventing a Congress controlled by one party from redrawing every state’s map (or, at least, every state with more than one representative’s map) in order to maximize the likelihood that the incumbent party would be elected.

This problem cannot be warded off by an act of Congress. And, as discussed above, it won’t be solved by a constitutional amendment either. The only sure way to prevent such widespread gerrymanders is to replace justices like Scalia with justices who understand that partisan gerrymanders are unconstitutional and that egregious gerrymanders must be struck down by the courts.